First amendment speech analysis

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The overbreadth doctrine focuses on the need for precision in drafting a statute that may affect First Amendment rights, and more concretely, allows a special kind of facial challenge to statutes.1 Footnote
NAACP v. Button, 371 U.S. 415, 432–33 (1963) . Ordinarily, to prevail in a facial challenge—a claim challenging a statute on its face, rather than only in certain applications—a litigant “must ‘establish that no set of circumstances exists under which the [law] would be valid,’ or show that the law lacks ‘a plainly legitimate sweep.’” 2 Footnote
Ams. for Prosperity Found. v. Bonta , 594 U.S. 595, 615 (2021) (internal citations omitted) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987) ; Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) ). Accordingly, if a statute sweeps in both protected and unprotected activity, the Court will ordinarily only invalidate its application to protected conduct.3 Footnote
See, e.g., Barr v. Am. Ass’n of Political Consultants , No. 19-631, slip op at 13–14 (U.S. July 6, 2020) (discussing severability doctrine and the “power and preference” for partial invalidation of a statute); United States v. Salerno, 481 U.S. 739, 745 (1987) ( “[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” ). But cf., e.g., Aptheker v. Secretary of State, 378 U.S. 500, 515–16 (1964) (concluding a First Amendment overbreadth case provided the appropriate analysis for a right-to-travel challenge to a statute that could not be narrowed due to the law’s “indiscriminately cast and overly broad scope” ). In the context of the First Amendment, however, the Supreme Court has allowed a person whose own conduct may not be constitutionally protected to bring a facial challenge to a law, if the statute is so broadly written that it sweeps in protected speech and could therefore have “a deterrent effect on free expression.” 4 Footnote
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) . The overbreadth doctrine thus allows the facial invalidation of a law that “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” 5 Footnote
Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) ). For example, in United States v. Stevens , the Supreme Court applied the overbreadth doctrine to rule unconstitutional a federal law that “criminalize[d] the commercial creation, sale, or possession of certain depictions of animal cruelty.” 6 Footnote
United States v. Stevens , 559 U.S. 460, 464, 482 (2010) . The Court described the statute as “a criminal prohibition of alarming breadth,” and concluded that “the presumptively impermissible applications of [the law] . . . far outnumber any permissible ones.” 7 Footnote
Id. at 474, 481 . See, also, e.g., United States v. Robel, 389 U.S. 258, 266 (1967) (federal law barring members of registered Communist-action organizations from employment in defense facilities); Lewis v. City of New Orleans, 415 U.S. 130, 131–32 (1974) (state law prohibiting using fighting words towards police performing official duties); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217–18 (1975) (city ordinance prohibiting films with nudity from being shown when visible from public streets); Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975) (local ordinance prohibiting topless dancing in certain establishments, in the context of an appeal of a preliminary injunction); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980) (municipal ordinance prohibiting certain charitable organizations from soliciting contributions); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 949–50 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451, 455, 467 (1987) (city ordinance making it unlawful to “oppose, molest, abuse, or interrupt” police officer in performance of duty); Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 570, 577 (1987) (resolution banning all “ First Amendment activities” at airport); Reno v. ACLU, 521 U.S. 844, 874–879 (1997) (statute banning “indecent” material on the internet); Iancu v. Brunetti , No. 18-302, slip op. at 11 (June 24, 2019) (federal law prohibiting the registration of immoral or scandalous trademarks); Ams. for Prosperity Found. , 594 U.S. at 618 (state law requiring charities to file forms disclosing information about donors).

The Supreme Court has recognized, however, that “there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct.” 8 Footnote
Hicks , 539 U.S. at 119 (upholding an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who “cannot demonstrate a legitimate business or social purpose for being on the premises” ). The Supreme Court has also rejected application of the doctrine in, for example, Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974) (plurality opinion); Parker v. Levy, 417 U.S. 733, 757–61 (1974) ; and New York v. Ferber, 458 U.S. 747, 766–74 (1982) . The Supreme Court has cautioned that facial “[i]nvalidation for overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” 9 Footnote
United States v. Williams, 553 U.S. 285, 293 (2008) (quoting L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999) ). The requirement that a law must be “substantially” overbroad accounts for this concern.10 Footnote
Hicks , 539 U.S. at 119–20 . In addition, the Supreme Court has said “a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, and its deterrent effect on legitimate expression is both real and substantial.” 11 Footnote
Erznoznik , 422 U.S. at 216 . Further, the Court has said “that overbreadth analysis does not normally apply to commercial speech.” 12 Footnote
Bd. of Trs. v. Fox, 492 U.S. 469, 481 (1989) ; see also, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977) ( “[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context.” )

Overbreadth analysis requires a two-step approach. First, a court must determine the scope of the allegedly overbroad law.13 Footnote
See United States v. Hansen , 599 U.S. 762, 770 (2023) ; Moody v. NetChoice, LLC, No. 22-277, slip op. at 10 (U.S. July 1, 2024). The second step “is to decide which of the law[‘s] applications violate the First Amendment, and to measure them against the rest.” 14 Footnote
Moody, slip op. at 11. These unconstitutional applications “must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.” 15 Footnote
Hansen, 599 U.S. at 770 (citing N.Y. State Club Ass’n., Inc. v. City of New York, 487 U.S. 1, 14 (1988) ; Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800–01 (1984) ). If a court has not been presented with material sufficient to make these determinations, it cannot conclude that a law is unconstitutionally overbroad.16 Footnote
See Moody, slip op. at 12.

Footnotes 1 NAACP v. Button, 371 U.S. 415, 432–33 (1963) . 2 Ams. for Prosperity Found. v. Bonta , 594 U.S. 595, 615 (2021) (internal citations omitted) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987) ; Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) ). 3 See, e.g., Barr v. Am. Ass’n of Political Consultants , No. 19-631, slip op at 13–14 (U.S. July 6, 2020) (discussing severability doctrine and the “power and preference” for partial invalidation of a statute); United States v. Salerno, 481 U.S. 739, 745 (1987) ( “[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” ). But cf., e.g., Aptheker v. Secretary of State, 378 U.S. 500, 515–16 (1964) (concluding a First Amendment overbreadth case provided the appropriate analysis for a right-to-travel challenge to a statute that could not be narrowed due to the law’s “indiscriminately cast and overly broad scope” ). 4 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) . 5 Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) ). 6 United States v. Stevens , 559 U.S. 460, 464, 482 (2010) . 7 Id. at 474, 481 . See, also, e.g., United States v. Robel, 389 U.S. 258, 266 (1967) (federal law barring members of registered Communist-action organizations from employment in defense facilities); Lewis v. City of New Orleans, 415 U.S. 130, 131–32 (1974) (state law prohibiting using fighting words towards police performing official duties); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217–18 (1975) (city ordinance prohibiting films with nudity from being shown when visible from public streets); Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975) (local ordinance prohibiting topless dancing in certain establishments, in the context of an appeal of a preliminary injunction); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980) (municipal ordinance prohibiting certain charitable organizations from soliciting contributions); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 949–50 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451, 455, 467 (1987) (city ordinance making it unlawful to “oppose, molest, abuse, or interrupt” police officer in performance of duty); Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 570, 577 (1987) (resolution banning all “ First Amendment activities” at airport); Reno v. ACLU, 521 U.S. 844, 874–879 (1997) (statute banning “indecent” material on the internet); Iancu v. Brunetti , No. 18-302, slip op. at 11 (June 24, 2019) (federal law prohibiting the registration of immoral or scandalous trademarks); Ams. for Prosperity Found. , 594 U.S. at 618 (state law requiring charities to file forms disclosing information about donors). 8 Hicks , 539 U.S. at 119 (upholding an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who “cannot demonstrate a legitimate business or social purpose for being on the premises” ). The Supreme Court has also rejected application of the doctrine in, for example, Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974) (plurality opinion); Parker v. Levy, 417 U.S. 733, 757–61 (1974) ; and New York v. Ferber, 458 U.S. 747, 766–74 (1982) . 9 United States v. Williams, 553 U.S. 285, 293 (2008) (quoting L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999) ). 10 Hicks , 539 U.S. at 119–20 . 11 Erznoznik , 422 U.S. at 216 . 12 Bd. of Trs. v. Fox, 492 U.S. 469, 481 (1989) ; see also, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977) ( “[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context.” ) 13 See United States v. Hansen , 599 U.S. 762, 770 (2023) ; Moody v. NetChoice, LLC, No. 22-277, slip op. at 10 (U.S. July 1, 2024). 14 Moody, slip op. at 11. 15 Hansen, 599 U.S. at 770 (citing N.Y. State Club Ass’n., Inc. v. City of New York, 487 U.S. 1, 14 (1988) ; Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800–01 (1984) ). 16 See Moody, slip op. at 12.